Facts & Figures

DOL and NLRB

Questionable Recess Appointments Bring Yet More Controversy to the NLRB

By Glenn Spencer 1/5/2012

Yesterday, the President announced he was giving recess appointments to three individuals to serve on the National Labor Relations Board. To say this was a surprising, and controversial, development is something of an understatement.

The new NLRB “members” are:

Sharon Block, currently the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, which is a political appointment.

Richard Griffin, currently the General Counsel for International Union of Operating Engineers.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes.

Should these appointments stand, the Board would be back at a full five members, three Democrats (Chairman Mark Pearce, Block and Griffin) and two Republican members (Hayes, and Flynn).

The Constitutional implications of the appointments are beyond the scope of this post, but what is worth mentioning is how things got to this point.

Recall that the NLRB cannot issue new rules or decide cases without a quorum. Courtesy of a Supreme Court decision in 2010, a quorum is defined as three members. The Board was in danger of falling to just two members within days due to the expiration of Craig Becker’s recess appointment.

Becker, we should remember, lost a confirmation vote in the Senate because of his extreme hostility to employers, even stating that employers should be “stripped of any legal cognizable interest” in whether or not there should be a union at their workplace. Despite his rejection, the President chose to put Becker on the Board with a recess appointment. Shortly thereafter, the NLRB began publishing a stream of anti-employer rulemakings and opinions that, among other things:

Instituted “ambush” elections, under which workers have no time to gain objective information about unionizing before having to make a decision on joining a union.

Overturned a decision allowing workers to reject Card Check organizing and insist on a secret ballot.

Mandated the posting of one-sided notices about joining unions in every workplace subject to the National Labor Relations Act.

Allowed micro-union organizing, under which union leaders could target small slivers of a workforce to go after so they could gain a foothold at workplaces where a majority of employees rejected unionizing.

Between Becker’s recess appointment, the NLRB’s numerous gifts to unions at the expense of workers and employers, and its baseless suit against Boeing, the Board found itself mired in controversy, and had so poisoned the well that any new nominations required deep scrutiny. Working with the Senate to demonstrate that it sincerely intended to restore the NLRB’s independence and credibility, the administration could have put together a package of nominees that would have received fair consideration. Instead, they chose to force through these recess appointments — even before any of the Democratic nominees had filed the required applications with the relevant Senate committee. In fact, the Senate has not been able to do any background checks to determine if the nominees owe back taxes, are the subject of criminal investigations, or have any conflicts of interest.

The NLRB has been mired in controversy for the past two years. Unfortunately, a large tank of fuel has just been thrown onto the fire.